You may be eligible to become a Supreme Court Judge, BUT…

The recent Supreme Court decision (13 September 2012) in the case of Namit Sharma v. Union of India has been criticized for more than one reason. A decision that examines the constitutional validity of a Parliamentary Act, namely the Right to Information Act, 2005, has been decided in a hurried manner. A writ petition under Article 32 of the Constitution of India was filed before the Supreme Court by the petitioner Namit Sharma and it was first heard on 11 July 2012. Within a short period of about two months, this petition was decided finally (on 13 September 2012) by a Bench of Justice A.K. Patnaik and Justice Swatanter Kumar. Though I could not get it confirmed officially, it is reported that the respondents could not even file their reply in this case till the time of its final disposal. This decision now requires that the Chief Information Commissioner at the Centre or State level shall only be a person who is or has been a Chief Justice of a High Court or a Judge of the Supreme Court of India. Thus, new post-retirement opportunities have been opened for retired Judges of the Supreme Court and High Courts. This will, in fact, lead to further compromising the independence of the judiciary, since more number of Judges would now be seeking post-retirement benefits. After all, justice should not only be done, but should manifestly and undoubtedly seen to be done. Moreover, strangely enough, while the above decision makes a retired Supreme Court Judge eligible for appointment as a Chief Information Commissioner, it ignores the fact that it is not practically possible since the retirement age of the Chief Information Commissioner is 65 years which is the same as that of a Supreme Court Judge!

Furthermore, this decision requires that the Central Information Commission and State Information Commissions shall henceforth work only in Benches of two members each, one of them being a “judicial member” while the other an “expert member”. It may be pointed out that the RTI Act does not contain any such provision for appointment of judicial members; thus, judicial members will now have to be appointed to these Information Commissions. While the Supreme Court observed that a person who is or has been a High Court Judge should be preferred for appointment as Information Commissioners (as judicial member), it has further laid down that a law officer or a lawyer may also be eligible for appointment as a judicial member of an Information Commission provided “he is a person who has practiced law at least for a period of twenty years as on the date of the advertisement”. The decision further requires that such lawyer should also have experience in social work.

So, a lawyer would be eligible to become a judicial member of an Information Commission at the Centre or State level only if he has practiced law at least for 20 years and he should also have experience in social work. Do you know what is the eligibility criterion for becoming a Judge in the Supreme Court?

As per Article 124(3) of the Constitution, a person who has been an Advocate of a High Court (or of two or more such Courts) for at least 10 years, is eligible to be appointed as a Judge in the Supreme Court. Similar experience of 10 years’ practice as an Advocate in a High Court is laid down under Article 217(2) of the Constitution for appointment as a High Court Judge.

Thus, while an Advocate may be eligible to be appointed as a Judge of the Supreme Court or of a High Court after 10 years of practice, he would not be eligible for appointment as a judicial member of the Central Information Commission or of a State Information Commission unless he has completed 20 years’ practice as an Advocate (though, the above decision does not specifically say that the said 20 years’ practice as Advocate should only be in a High Court)! In addition, to be such a judicial member, one must also have the experience in social work. What type of social work? How much experience? At what level of social work? Who will certify such social work? Well, no guidelines are laid down in the above decision on these issues. Isn’t too vague? More so, when in this very decision, the Hon’ble Supreme Court has itself termed the provisions relating to eligibility / disqualification of Information Commissioners as contained in Section 12(5) and 12(6) of the said RTI Act to be vague! So, while the statutory provisions enacted by the Parliament are declared “vague”, the Supreme Court itself introduces certain “vague” provisions!!

Of course, I may clarify that the aforesaid requirements refer only to the “eligibility” for an appointment, and that “suitability” is an altogether different matter.

In case you find it strange that the Supreme Court has mandated that 20 years’ minimum practice as a lawyer is necessary for becoming eligible for appointment as a judicial member in an Information Commission (vis-à-vis a lower requirement of 10 years’ practice for being eligible for appointment as a Supreme Court Judge), you’ll find it even more strange if you read the following.

On more than one occasion, a Supreme Court Judge (who retired last year and who is presently holding a well-known statutory post) was seen telling young Advocates in the Supreme Court in a language something similar to this (there are a few varied versions of this): “Why did you start appearing in the Supreme Court so early? Go to the District Court and practice there for 15 years, and after that practice in the High Court for 10 years, and then only you should practice in Supreme Court”. Let me point out that such sermons were not issued in a lighter vein but in a serious tone, making such young advocate(s) disappear from the court in no time.

So, you need about 20-25 years’ practice as an Advocate before you can even start practicing in the Supreme Court (but you need only 10 years’ practice to become a Supreme Court Judge)! Thankfully, the Hon’ble Judge did not give this direction in a regular judgment in order to make it binding as a law declared under Article 141 of the Constitution. Do I need to point out here that under the provisions of the Advocates Act, 1961, an Advocate of even a single day’s experience is entitled to appear before any court, including the Supreme Court? Of course, there is a system of Advocate-on-Record (AOR) in the Supreme Court (however, one does not need to be an AOR to address the Supreme Court as a Counsel), but you can become even an AOR in the Supreme Court with less than about 5 years’ practice (including compulsory training and AOR examination). The fundamental right to practice any profession that is guaranteed under Article 19(1)(g) of the Constitution, subject to reasonable restrictions laid down in Article 19(6) thereof, also does not hold ground in front of such vagaries in the highest court of the land. Moreover, I would not like to comment on the propriety of scolding a young advocate like this, instead of encouraging him and helping him during his early days and also instead of complimenting him for showing courage to appear before the Supreme Court at an early age. After all, knowledge and talent are not the monopoly of people with grey hair. If at all any proof is needed to prove it, let me just point out that the scientific paper for which Albert Einstein won his Nobel Prize in Physics was published by him at the age of 26 years. It is also noteworthy that not all people can afford a Harish Salve for a hearing in the Supreme Court.

The interpreters of the Constitution, thus, appear to be laying down much more stringent eligibility standards for holding a judicial position than those prescribed by the makers of the Constitution, though it may perhaps be due to the fact that they are oblivious of the relevant provisions in the Constitution. Or else, the makers of the Constitution, perhaps, had more faith in the system.

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, and is author of 3 law books. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. Email: info@tilakmarg.com

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